Amazingly, the answer appears to lie in...the dining & entertainment lobby. According to Garrett Bradley (D) of Hingham, the sponsor of the measure, the ban stifles business, hurting convention centers and "restaurants where companies typically hosted physician events and dinners." (NB--the quote is from the article, not a direct of Mr. Bradley, though I doubt he'd quibble if the line were attributed to him.) Never mind the fact that this sector of the Massachusetts economy appears to be doing reasonably well, with an increase in overall revenue compared to last year, the measure's backers appear to be saying that it's perfectly fine if a payola-style arrangement is in place, as long as the palms continue to be greased and the filet mignon gets served with the Cabernet.

A related theme is being played out in the judicial branch of government, as the US Supreme Court is hearing arguments on a Vermont law that bars the commercial use of physician prescription patterns. Based on the early returns, and noting previous Court decisions that take a fairly broad view of "free-speech" rights (at least if you are a corporation), it appears that the law is destined for being overturned. I can't claim to be a legal expert and thus won't even begin to take a crack at the wrangling over the First Amendment, other than to note a certain puzzlement at what passes for "free speech" these days among the Court's "strict constructionist" wing. Did the Founding Fathers really have the selling of a doctor's prescription habits in mind when crafting the First Amendment? I'm thinking not, but I await the peals of derision from my philosophico-legal foils (and loyal readers!) such as Ted Frank, a conservative maverick (I'm not sure if "conservative" is the right word for him; I'm certain that "maverick" is) and who ranks as the second smartest person I have ever had the pleasure of knowing in my life. (And in case anyone might misunderstand, I'm not implying that I occupy the top spot; I doubt I crack even the top 75, and I don't have that many friends.)

Regardless of the legal principles at stake, Chief Justice John Roberts made his contribution to the follies by appearing to frame this as an argument of "restricting the flow of information to doctors," as silly a line that can be uttered in such an august house as SCOTUS. How would withholding prescription info from drug companies prevent them from making their pitch for their drug? How does this even remotely "restrict the flow of information"? The naivete exhibited by the Chief Justice is pretty remarkable (and shared, without surprise, by Justices Scalia and Kennedy). The "it's all data, it's all protected by the First Amendment" argument seems to only work when big business benefits, but not the other way around. The recipe to Coke is just data, too; somehow I don't think the Coca-Cola Corporation considers that to be something that your local Joe can just barge on in and demand. Pray tell, what's the difference?

7 comments:

Glenn? I'd agree with him ahead of me, but I'm surprised none of your professors made the cut.

Anyway, what's going to doom the Vermont statute is its discriminatory rule; Vermont claimed that it was ok to regulate the speech for privacy reasons, but there's a carve-out in the statute to give the information to academic institutions without any limits.

The reason pharma wants the data is that knowing a doctor's prescription patterns and how it varies from the norm helps the marketing reps to know what factual information would be most helpful to a doctor (yes, to also persuade her to buy more drugs from the rep's pharma, but there's a confluence of interest) Maybe a doc isn't aware of the most recent literature regarding Drug X, and if the prescription patterns are inconsistent with the literature, the rep can shoot over with the appropriate NEJM article.

Of course it's Glenn! Though I'd pay a lot of money for ringside seats to see the two of you locked in battle a-la Time Lord Wrestling, I would. As for my professors, you forget that I was an English major, where many put on airs of brilliance but few--very few--come anywhere close to possessing it. Tom Bishop, a prof of mine while in grad school at Case Western, was terrifyingly brilliant, but he's the only one who leaps to mind. There are, of course, many extremely bright minds at the medical center where I work, and so, as in college, I continue to feel like an iggit as I make my way through the world.

I am aware of the argument re: "what factual information would be most helpful to a doctor," but when I hear it my bullshit detector goes wild. It is the job of state Boards of Medicine, not drug companies, to set up requirements for continuing medical education so that docs are up to date. As for why Vermont would set up the law stacking the deck against Big Pharma in favor of academic institutions, I think we agree that that's one reason to doom the law. But I don't see any inherent right in anyone other than the state medical licensing board to know an individual doc's Rx patterns. Plus my understanding is that the state didn't forbid access to the information, only that there was an "opt-in" clause. And thanks for the explanation of strict constructionism versus original intent. I eagerly soak up your legal teaching points, among other things.

Why, thank you, Web Developers! Though your name sings out "Spam", your comment doesn't, so I assume you are a legitimate human being, and with your eagle eyes have uncovered my true lack of concern for my patients' welfare, hidden under the guise of empathy. I knew someone would catch on, eventually. Ah well. It's a good racket to generate income for my liquor habit--especially the reimbursements given to ID docs. Pass the bourbon, please...

Subscribe To

Share it

About Me

I'm a physician and an educator with a clinical focus in infectious disease. I teach the spectrum from 3rd year medical students through senior ID fellows, and try to keep everyone loose when doing so. Whether I succeed or not, you'll have to ask them.
I am interested in issues where medicine intersects with politics, as well as how medical research is portrayed by media. In some ways my views are very much at the fringe of the rest of the physician community, although in several other critical ways I’m your typical stethoscope-wielding, white-coat-wearing, reflex-hammer-tapping doc and consider myself steeped in the traditions of the brotherhood and sisterhood.